SSDL Pty Ltd (Migration)

[2024] AATA 3135

SSDL Pty Ltd (Migration) [2024] AATA 3135 (13 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SSDL Pty Ltd

REPRESENTATIVE:  Ms Wei Wen Phang

CASE NUMBER:  2205656

HOME AFFAIRS REFERENCE(S): BCC2021/357879 BCC2021357879

MEMBER:Peter Emmerton

DATE:13 August 2024

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 13 August 2024 at 11:14am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Medium-term stream – Computer Network and Systems Engineer – labour market testing conditions – process and manner of the market testing – advertising across 3 sites – form and period of advertising – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA

Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2022 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 10 March 2021. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy 140GBA of the Migration Act because they were not satisfied the applicant provided evidence to show they could satisfy the labour market testing conditions.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.

7. The Tribunal has read and carefully considered the evidence previously presented to the delegate and the Department.

8. The Tribunal has read and carefully considered the evidence subsequently presented to it as listed below.

   • Submission: Sebastian Maciejewski of SSDL (Undated)
   • Labour Market Testing: SEEK advertisement
   • Labour Market Testing: Jobactive advertisement
   • Labour Market Testing: Jora advertisement (1 of 2)
   • Labour Market Testing: Jora advertisement (2 of 2)
   • Email confirmation of Jobactive advertisement: 20/01/21
   • Remuneration Survey Result re Network and Systems Engineer
   • Employment Contract
   • Job Description re Network and Systems Engineer
   • Financials, BAS, ABN, ASICS, Org Chart, Employ Contract....
   • MR5 - signed.pdf
   • ASIC Current and Historical Details Extract
   • ABN Current Detail
   • IMMI Approval of Sponsorship Notification
   • SSDL Pty Ltd FY 21-22 Financial Statements
   • SSDL Pty Ltd FY 22-23 Financial Statements
   • Business Activity Statement - SSDL Hybrid Trust (6).pdf
   • Business Activity Statement - SSDL Hybrid Trust (5)
   • Business Activity Statement - SSDL Hybrid Trust (4)
   • Business Activity Statement - SSDL Hybrid Trust (3)
   • Org Chart V2024.1
   • SSDL Occupation Alignment and Genuine Position Letter
   • ANZSCO Extract Computer Network and Systems Engineer
   • Job Description
   • SSDL AMSR Letter
   • Signed Contract of Employment 2021
   • Ivo Contract Letter of Variation_20230720__Signed
   • Grant Letter Ivan Bukumira sc 500
   •  Ivan_Bukumira Grant_Notification sc 485
   • VEVO Visa Details Check - Ivan Bukumira Current BVA
   • Skills - English Language Test Results Certificate
   • JobActive - Ad.pdf
   • Seek LMT Advertisement
   • Systems_Network Engineer

   The nomination must comply with the prescribed process

9. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.

10. The nominator, SSDL Pty Ltd, lodged a nomination for approval on 10 March 2021, for a Computer Network and Systems Engineer, ANZSCO 263111, Skill level 1. The nominee / visa applicant was Mr Ivan Bukumira. The initial employment contract dated 26 February 2021 shows the base rate of pay is $95,000 per annum plus the Superannuation Guarantee. The nominating entity claims the current earnings to be $120,000 per annum plus Superannuation Guarantee. Signed supporting documentation was provided in the form of a variation to conditions of employment dated 20 July 2023. In either case the relevant TISMIT is exceeded and the current TISMIT set at $73,150 which commenced 1 July 2024 would also be exceeded.

11. Based on the evidence before the Tribunal the person is nominating an occupation under s140GB(1)(b) in relation to a holder of a Subclass 457, or a holder, applicant or a proposed applicant for a Subclass 482 visa: reg 2.73(1). In this case a Subclass 482 visa.

12. The nomination was made using the approved form and fee, Business Visas: regs 2.73(3), (4) and (5) and the nomination was accompanied by any applicable nomination training contribution charge: reg 2.73(5A).

13. The nomination is in the Medium-term stream and is a Temporary Skills Shortage specified occupation and satisfies 2.73(6).

14. The applicant has identified the nominee in the nomination: reg 2.73(8).

15. The nomination includes the name of the occupation, Computer Network and Systems Engineer, and the corresponding 6-digit code, ANZSCO: 263111, Skill level 1, the location/s at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination and the Organisation Chart for the nomination.

16. The nomination includes written certification as to whether or not the person has engaged in conduct that contravenes s 245AR (1) of the Act: as required to satisfy reg 2.73(12).

17. The nomination includes written certification that the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws, unless the occupation is exempt. The contract has been perused by the Tribunal and is as required to satisfy reg 2.73(13).

18. The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO (or the relevant instrument if no ANZSCO code, in this case ANZSCO 263111, Computer Network and Systems Engineer. The qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO: 263111, Skill level 1. The Tribunal has carefully studied the skills and tasks mapping against the ANZSCO descriptions and explanations and accepts a clear and strong positive correlation.

19. In this case the visa applicant possesses a multitude of relevant Certificates and certifications as is commonly the circumstance in this profession. He is also in possession of a relevant Graduate Diploma. The position is in the person’s business if they are or would be an overseas business sponsor, or, in any other case, is in the person’s or an associated entity’s business: reg 2.73(14). For clarity, it is noted the business is located in Australia.

20. For these reasons the requirements of reg 2.72(3) are met.

    No adverse information known to Immigration

21. Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.

22. Based on the evidence in the Nomination form, the Tribunal is satisfied the nominator has certified in writing they had not engaged in conduct, in relation to the nomination, that constitutes a contravention of the Act. No evidence has been brought before the Tribunal to the contrary nor identified by the Department.

23. For these reasons the requirements of reg 2.72(4) are met.

    Nominator is a standard business sponsor

24. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.

25. Based on the evidence in the 482-visa nomination form and Departmental records viewed by the Tribunal, the Tribunal is satisfied the nominator SSDL Pty Ltd is a Standard Business Sponsor, (SBS). Their current SBS expires 9 May 2026.

26. For these reasons the requirements of reg 2.72(5) are met.

    Payment of debt mentioned in s 140ZO

27. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.

28. There is no evidence placed before the Tribunal of any debt mentioned in s 140ZO of the Act that is unpaid.

29. For these reasons the requirements of reg 2.72(5A) are met.

    Requirements for existing Subclass 457 or Subclass 482 visa holders

30. The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:

    ·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);

    ·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).

31. As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6), (7) and reg 2.72(14) do not apply. It is however noted that the language test requirements are met as evidenced by provision of the IELTS test results dated 22 October 2019.

    Specified occupation

32. Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.

33. Based on the evidence, the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument (LIN 19/048). No relevant inapplicability conditions were specified in the relevant instrument. Further, the evidence contained in the Department file, has satisfied the Tribunal the occupation is applicable to the person identified in the nomination.

34. For these reasons the requirements of reg 2.72(8) (9) are met.

    Position must be genuine and full-time

35. Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.

36. The Tribunal notes it has been furnished with substantially more information and evidence than was originally provided to the Department and delegate upon which they based their decision.

37. The Tribunal has carefully perused the evidentiary statement provided to it in relation to the genuineness of the position and accepts the position is clearly both genuine and full-time. It acknowledges the additional challenge posed by the requirement of the visa applicant or other individuals employed in this role or a similar role to have the experience and capacity to work across a complex field.

38. The Tribunal through its previous experience is aware that finding people with the combination of sophisticated skills and experience in this unique industry environment is challenging. These skills are not easily found. Retention is likewise a challenge as these rare individuals are in such high demand that poaching is a constant threat. This explains why the current earnings are substantially greater than the initial base contracted salary and are in the upper quartile for the industry. The Tribunal expects that this is likely to further escalate and notes that when interrogating a widely used national and international recruitment web site there are currently a very substantial number of associated roles under recruitment in Australia. 

39. It has examined the Employment Contract, the stated duties of the visa applicant, the employment advertisements, the qualifications of the visa applicant and the nature of the business in which the applicant is employed. As stated, the Tribunal is aware of the current challenges associated with recruiting and retaining suitably qualified individuals.

40. The organisation has a solid revenue base. This has been clearly demonstrated by the production of Taxation Returns, BAS documents, Financial Statements and Profit and Loss Statements. Revenues have been maintained at substantial levels in-spite of the Covid-19 challenges faced by businesses in that time-period. The Tribunal notes a satisfactory profit margin and earnings retention.

41. The Tribunal has perused the Organisation structure and is satisfied the position is both genuine and necessary.

42. It is clear from the statements made on behalf of the nominator the nominee is key to the organisation’s current success. The Tribunal has formed an opinion that it is extremely unlikely an ambitious growing organisation is likely to spend in the vicinity of $400,000 over 3 years on wages and employment on costs on a role that is not both genuine and full-time.

43. For these reasons the requirements of reg 2.72(10) are met.

    Employment under contract

44. Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 19/212. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and reg 2.72(12) must be met.

45. The nominated occupation is not specified in the instrument IMMI 19/212 and the applicant is not an overseas business sponsor. The nominee will be engaged under a written contract of employment by the applicant and the applicant has given the Minister a copy of the contract signed by the employer and nominee. There is no evidence before the Tribunal that indicates the contrary position.

46. For these reasons the requirements of reg 2.72(12) are met.

    Annual earnings

47. Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’.Where reg 2.72(15) applies, it requires that:

    ·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

    ·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);

    ·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);

    ·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and

    ·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

48. The annual contracted earnings substantially exceed the amount specified in the relevant instrument for reg 2.72(15)(b). The most recent signed contract dated 20 July 2023 indicates a salary of $120,000 per annum plus the current Superannuation Guarantee, ($133,200 total remuneration). The Tribunal acknowledges this exceeds the relevant TISMIT. It notes and accepts the evidence the salary has increased substantially from an initial annual guarantee of $95,000 in line with market expectations. It is considered a rational decision and therefore likely in the forementioned current challenging recruitment/retention climate. It is also acknowledged this role is being remunerated in the top quartile according to current remuneration profiles. The Tribunal once again acknowledges should this application be made today it still substantially exceeds the current TISMIT which came into force on 1 July 2024.

49. As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of reg 2.72(15) do not apply.

    Employment conditions

50. Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.

51. If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business, in Australia as verified by reference to the ACN details, on the ASIC website, due for renewal on 14 October 2026 and reg 2.72(18)(b) does apply.

52. The Tribunal has carefully scrutinised the current employment contact of the visa applicant and analysed the employment conditions. In addition, it has had regard to the current market conditions in this field and has concluded there is no evidence before it which would allow a conclusion the nominee’s conditions of employment are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location. It has in addition perused current salary information data from several related sites.

1. For these reasons the requirements of reg 2.72(18)(a) are met.

2. There is no evidence before the Tribunal which would indicate the existence of any discriminatory recruitment practices being undertaken by the nominating entity.

3. For these reasons the requirements of reg 2.72(18)(b) are met.

   Labour Market Testing

4. Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).

5. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI 18/036 In addition:

   ·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;

   ·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);

   ·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and

   ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

6. The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument IMMI 18/036. It is noted the nomination date was 10 March 2021.

7. The Tribunal notes that major disaster or skill and occupational exemptions in s.140GBB and s.140GBC do not apply.

   Supporting document

8. Labour market testing conditions do apply in this case.

9. The Tribunal accepts the evidence and accompanying statements made by the nominating entity as to the process and the manner of the market testing, the advertising across 3 sites, the form of and the period of advertising. In addition, it accepts the fact that there was not any suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) readily available to fill the nominated position. There is no evidence of redundancies or retrenchments in the relevant time prior to employment of the visa applicant. This is as would be expected in this candidate field of expertise.

10. The nominator explained the reason why they provided insufficient evidence of the recruitment undertaken in the prescribed manner with the appropriate market testing.  Simply stated it was a lack of understanding of the requirements because they did not engage a suitably qualified representative or legal representative at the time of application. This is unsurprising to the Tribunal. This area is complex and highly nuanced and what may initially appear to be a simple administrative process and thus encouraging self-application so as to avoid expensive fees may sometimes incur errors that ultimately cause failure of the application.

11. Evidence of the dated recruitment advertisements in 3 websites, SEEK, Jora and Jobactive was provided to the Tribunal. In addition, evidence was provided to demonstrate responses on the Jobactive site with 141 views and 68 applications.  

12. It is noted that in each of the advertisements placed on the 3 sites the salary range was provide, the sites were active for at least 30 days and the role was very substantially explained and described and location of workplace stated.

13. For these reasons, the labour market testing requirements in s.140GBA are met.

    Nomination training contribution charge

14. Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).

15. The Tribunal is satisfied the appropriate nomination training contribution charge was paid.

16. For these reasons the requirements of s 140GB(2)(aa) are met.

17. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

    DECISION

18. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

    Peter Emmerton

    
    

    Member

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

    (1)This regulation applies in relation to a person who:

    (a)is any of the following:

    (i)       a standard business sponsor;

    (ii)      a person who has applied to be a standard business sponsor;

    (iii)     …

    (iv)    …

    (b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):

    (i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

    (ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;

    (iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

    (2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

    Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

    (3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

    (4)The Minister is satisfied that either:

    (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

    (5)The Minister is satisfied that:

    (a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or

    (b)…

    (5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.

    (6)If the nominee holds:

    (a)a Subclass 457 (Temporary Work (Skilled)) visa; or

    (b)a Subclass 482 (Temporary Skill Shortage) visa;

    the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.

    (7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

    (8)The Minister is satisfied that:

    (a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:

    (i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or

    (ii)      …; and

    (b)the occupation applies to the nominee in accordance with the instrument or work agreement.

    (9)The Minister may, by legislative instrument, specify occupations and, for each occupation:

    (a)whether the occupation is:

    (i)       a short term skilled occupation; or

    (ii)      a medium and long term strategic skills occupation; and

    (b)either:

    (i)       the 6-digit ANZSCO code for the occupation; or

    (ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and

    (c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and

    (d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:

    (i)       the person who nominated the occupation;

    (ii)      the nominee;

    (iii)     the occupation;

    (iv)    the position in which the nominee is to work;

    (v)     the circumstances in which the occupation is undertaken;

    (vi)    the circumstances in which the nominee is to be employed in the position.

    (10)The Minister is satisfied that the position associated with the occupation is:

    (a)genuine; and

    (b)a full-time position.

    (10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (11)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the person is not an overseas business sponsor; and

    (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

    the Minister is satisfied that:

    (d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and

    (e)the person will give the Minister a copy of the contract signed by the employer and the nominee.

    (12)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the person is an overseas business sponsor; and

    (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

    the Minister is satisfied that:

    (d)the nominee will be engaged only as an employee under a written contract of employment by the person; and

    (e)the person will give the Minister a copy of the contract signed by the person and the nominee.

    (13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …

    (14)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

    (c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;

    the person has provided evidence to the Minister that the nominee satisfies:

    (d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or

    (e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.

    (15)Subject to subregulation (16), if:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;

    the Minister is satisfied that:

    (c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and

    (d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and

    (e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and

    (f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and

    (g)either:

    (i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or

    (ii)      it is reasonable to disregard any such information.

    (16)However:

    (a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:

    (i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and

    (ii)      it is reasonable in the circumstances to do so; and

    (aa)the Minister may disregard the criterion in paragraph (15)(e) if:

    (i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and

    (ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and

    (b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.

    (18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:

    (a)either:

    (i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

    (ii)      it is reasonable to disregard any such information; and

    (b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.

    (19)…